Category: Articles
Article
The Right to a Glass Box: Rethinking the Use of Artificial Intelligence in Criminal Justice
Brandon L. Garrett & Cynthia Rudin
L. Neil Williams, Jr. Distinguished Professor of Law, Duke University School of Law and Faculty Director, Wilson Center for Science and Justice, Earl D. McLean, Jr. Professor of Computer Science, Electrical and Computer Engineering, Statistical Science, Mathematics, and Biostatistics & Bioinformatics, Duke University.
Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how…
Apr 2024
Article
Excuse 2.0
Yehonatan Givati, Yotam Kaplan & Yair Listokin
Sylvan M. Cohen Professor at Hebrew University Law School, Professor at Hebrew University Law School, Deputy Dean and the Shibley Family Fund Professor of Law at Yale Law School.
Excuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds significant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the view…
Apr 2024
Article
Forced Robot Arbitration
David Horton
Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law.
Recently, advances in artificial intelligence (“AI”) have sparked interest in a topic that sounds like science fiction: robot judges. Researchers have harnessed AI to build programs that can predict the outcome of legal disputes. Some countries have even begun allowing AI systems to resolve small claims. These developments are fueling a fascinating debate over whether…
Apr 2024
Article
One-Offs
William D. Araiza
Stanley A. August Professor of Law, Brooklyn Law School.
This Article examines the phenomenon of “one-offs”: court opinions that are rarely cited by the court that issued them and do not explicitly generate further doctrinal development. At first glance, one might think that such opinions are problematic outputs from an apex court such as the U.S. Supreme Court, whose primary tasks are the exposition…
Feb 2024
Article
Penalizing Prevention: The Paradoxical Legal Treatment of Preventative Medicine
Doron Dorfman
Associate Professor of Law, Seton Hall Law School Faculty.
Preventive medicine, which includes interventions intended to preempt illnesses before they surface, has long been a priority for furthering public health goals and improving quality of care. Yet, preventive medicine also sends strong signals about the possible risks associated with the users’ behavior and character. This signaling effect intersects with existing stigma and pervades law…
Feb 2024
Article
Rape as Indignity
Ben A. McJunkin
Associate Professor of Law, Sandra Day O’Connor College of Law at Arizona State University; Associate Deputy Director, Academy for Justice.
Rape law has a consent problem. The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially. It is now widely taken as axiomatic that nonconsensual sex is paradigmatic of rape. But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law…
Feb 2024
Article
Lethal Immigration Enforcement
Abel Rodriguez
Assistant Professor of Law, St. John’s University School of Law.
Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853…
Feb 2024
Article
Democracy, Civil Litigation, and the Nature of Non-Representative Institutions
Matthew A. Shapiro
Associate Professor of Law, Rutgers Law School.
With democratic governance under threat in the United States and abroad, legal scholars have endeavored to defend the institutions considered integral to a well-functioning democracy. According to an increasing number of civil procedure scholars, civil litigation should be included among those institutions, with many contending that litigation performs several important “democratic” functions. This Article draws…
Jan 2024
Article
Balancing is for Suckers
Gali Racabi
Assistant Professor, School of Industrial & Labor Relations, Cornell University, Associated Faculty, Cornell Law School.
Balancing workers’ statutory rights against employers’ interests is the heart of labor law. But balancing—or employers’ interests, for that matter—is nowhere to be found in the text of our labor statutes. Yet courts and the National Labor Relations Board routinely grind down workers’ rights against this loose legal premise. Balancing is the meta-doctrine that stripped…
Jan 2024
Article
The Lost Promise of Private Ordering
Cathy Hwang, Yaron Nili & Jeremy McClane
Barron F. Black Research Professor of Law, University of Virginia School of Law, Professor of Law & Smith-Rowe Faculty Fellow in Business Law, the University of Wisconsin Law School & Professor of Law, University of Illinois College of Law.
The agency problem is corporate law’s most enduring challenge: when corporate managers spend investors’ money, how does the law protect investors from reckless management? Scholars of law, finance, and accounting have suggested that in one corner of corporate law—corporate debt—a powerful tool exists to mitigate the agency problem. Specifically, through loan covenants, lenders can force…
Jan 2024
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